A New Yorker who grew up in Manhattan, Ms. Kagan earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton.

Considering the most likely alternative was Judge Merrick Garland, formerly a top DOJ prosecutor, I'm glad. I think we dodged another Alito and Roberts bullet. Her only past job that gives me pause: She was a special counsel to Joe Biden when he served on the Senate Judiciary Committee in the early 90's. [More...]

It was 1994 that Biden created his awful Violent Crime Control and Law Enforcement Act. It was a terrible bill in so many ways, not the least was the creation of many new death penalty offenses. But according to her questionnaire she submitted for the Solicitor General job, she only held that position in the summer of 1993, and it sounds like she mostly worked on getting Justice Ginsburg confirmed, so maybe she didn't have a lot to do with it.

Her job as Solicitor General was to argue the side of the Administration. It doesn't mean those positions were her personal beliefs. Based on her choice of jobs over her career, she may be more liberal than she's being credit for. I hope so.

She appears to be a good match for Obama. That in itself is enough to concern me. Just like Obama, we're left wondering what she really stands for. And just like Obama we're left to hope that she's what we want. Not exactly a ringing endorsement.

Her opinion on executive power is troubling to me. The court certainly doesn't need another advocate of presidential power!

On the positive side, she has been vocal against DADT. I expect her to be an asset on civil rights issues.

verges on Jeralyn's position about how good people can never be prosecutors in essence Kagan disqualifies herself by being SG. I don't agree but that seems to be his position (yes he cites specific actions by Kagan as SG- but SGs defend government policies, and push for a stronger executive- attacking her for that is like disparaging a defense attorney for providing a vigourous defense).

There are plenty of very good people who are prosecutors, just as there are not-so-good people who practice other types of law, including criminal defense. Your comment is a sweeping generalization just as bad as what many people think of defense attorneys - that they are sleazy. It isn't true and it isn't fair.

Heck, most criminal defense attorneys I know have good relationships with prosecutors. Even Johnnie Cochran left defense work to go be a prosecutor in LA, saying it was his way of becoming "one of the good guys, one of the very top rung.". He then eventually went back to defense work, but you get the point.

I don't know what Jeralyn's position is, but I hope she is just anxious to get a diversity of opinion and background on the bench, and not that all prosecutors are bad people.

prosecutors. I said I don't want more prosecutors as Supreme Court justices. It's not because they aren't good people, but because I disagree with their restrictive views on constitutional rights for the accused, which views ultimately are used to restrict the rights of everyone else.

[T]he current "confirmation mess" derives not from the role the Senate assumed in evaluating Judge Bork, but from the Senate's subsequent abandonment of that role and function. When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparisonwith these recent failures. Out, then, with the new mess and in with the old!

If they are both smart women, who both climbed the ladder, taking increasingly "better" positions, how are they not similar?

I know Miers was made out to be dumb, but I haven't called Miers that at all - I'm not comparing them on the basis of their perceived intelligence, but on their lack of judicial experience and their affinity for making the political moves (there is politics in academia) that served their ambition.

Miers also was perceived as not being devoted enough to conservative principles, and Republicans were not assured she would be a reliable enough vote for those principles; in that regard, is Kagan any different? Not only do we not know if she is devoted to "progressive" principles, we have no idea what she thinks about those principles. Are we really ready to claim that she is reliably progressive based on the Harvard ROTC situation?

If conservatives did not think Miers brought enough of what they were looking for to an open seat on the SC, why is it a bad thing if liberals do not think Kagan brings enough of what we were looking for to fill Stevens seat on the Court?

Is the left-wing of an increasingly conservative New Democratic Party ever going to get anything they want from a Democratic president and a majority-Democratic Senate?

the comparison is simplistic at best- people questioned Meir's qualification for even an executive branch position much less the Supreme Court- while Kagan one would assume (though with far less support than I would imagine seriuosly, her publication CV is basically non-existant and I don't get that).

I have previously explained the total lack of any experience - ever - of any kind - on Kagan's part in the court system of the United States. Kagan has never set foot as an attorney of record into a trial courtroom in the United States, not even a small claims justice court; nor for that matter, any appellate court save for the literally handful of spoon fed cases she suddenly worked on as Solicitor General. Kagan has never been a judge in any courtroom, of any court, in the United States. Quite frankly, there is not even any evidence Elena Kagan has sat as a judge for a law school moot court exercise. I have had paralegals and secretaries with better experience than this. Does a nominee for the Supreme Court have to be Gerry Spence, Pat Fitzgerald or David Boies? No, but it would be nice if they had the passion, curiosity and commitment to their profession to go to court at least once. Never has there been a United States Supreme Court Justice with such a complete lack of involvement in the court system. Never.

[snip]

One of the most laughable memes floated by Kagan's inner circle of friends and sycophants is that she is some sort of wondrous uniter who could single handedly suave Anthony Kennedy to her side like some kind of SCOTUS Svengali. First off, this is the biggest pile of bull manure I have ever experienced; not to mention Kennedy is not so young anymore and may not be around so long. Oh, also, there is less than zero evidence the wet behind the ears rookie on the Supreme bench ever does squat along the lines people are suggesting as far as "persuasion" they glibly think Kagan can pull off.

The narrative being pitched about Kagan is the most contrived I have ever heard on a Supreme Court nominee. She has little record of legal accomplishment in any area actually in the active legal profession (although she apparently is very good at schmoozing monied corporations and benefactors of the Ivy League elite). None. She had never even set foot into a courtroom on behalf of a client, much less as a judge on a case in controversy, prior to being named Solicitor General. Her resume of written work is about the equivalent of an aggressive law school student on the top of their school's law review; maybe less.

Kagan's record as Solicitor General is shaky, at best; she wrote a weak amicus brief in Mohawk Industries, was unfocused on her oral argument of Citizens United, stepped in deep manure during the oral argument in Holder v. HLP when she said the material support criminal charge should be applied to attorneys representing disadvantaged clients, and no less than the Supreme Court themselves, in an 8-1 decision in US v. Stevens, basically declared her briefing and argument in said case to be laughably ill conceived, wrongheaded and misguided. Kagan herself admits she is so inexperienced she is like a deer in headlights before the Supreme Court. This is the woman who is going to be the great liberal persuader? Please; what a patently absurd contention.

[snip]

In the space of 48 hours, we have now been presented with a Democratic Administration coming out in favor of perverting and undermining Miranda, siding with the Federalist Society wet dream of breaking up the 9th Circuit and now the appointment of a blank slate unqualified Supreme Court nominee whose main credentials are that she has worked with Barack Obama and is in favor of unitary executive powers. To say the news on the legal and Constitutional front is depressing and demoralizing would be the understatement of the still young decade.

Forget Harriet Miers; Kagan's record - which is not the same as a resume - needs to stand alone, and with distinction. Kagan's resume is stellar - so is Obama's - but her record of analysis, argument, exposition and substance is lacking; the bulk of her career is as an academic/administrator/fundraiser - is that good enough for the Supreme Court?

Justice Scalia by now has challenged and amused a decade's worth of law professors, which is no small thing if that is your profession; more seriously, the quality and intelligence (even if ultimate wrong-headedness) of much of Justice Scalia's work has instigated a debate that in the long run can only advance legal inquiry. But the bottomline issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court's decisions.

Do you imagine that I would not watch the hearings? And do you imagine that I have not read about her background?

Kagan may be smarter than Miers, and the places she has landed carry more snob appeal, certainly, but what bits of legal and analytical brilliance has she revealed? Reportedly, even those closest to her are going with the same gut feelings you have about what kind of justice she would be, since even they have no idea where she stands on anything.

In contrast, Kagan's opinions on these matters remain unknown. A nominee, even one who has never been a judge, doesn't have to be a graphomaniac, but Kagan's publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component. For example, the thesis of Kagan's 1996 article "Private Speech, Public Purpose" in the University of Chicago Law Review is that the Supreme Court's First Amendment doctrine "constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech." She flatly refuses to assert whether this scheme correctly interprets the First Amendment or whether it is a good method for regulating speech. "I have never proposed to show," Kagan notes, "that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does ... I leave for another day the question whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance."

Similarly, Kagan's 2001 article "Presidential Administration," published in the Harvard Law Review, describes how presidential oversight of federal administrative agency decision-making increased significantly during both the Reagan and Clinton administrations. Yet the article is focused almost solely on outlines of the administrative process, rather than its substance, thus sidestepping almost all potential political controversy. Kagan reaches the unobjectionable conclusion that vigorous presidential oversight is desirable to the extent that it increases the political accountability of administrative agencies and furthers regulatory effectiveness. (That Kagan's academic writings tell us so little about what we want to know when evaluating a Supreme Court nominee is especially problematic given that she hasn't published for a general audience; we can't find evidence of her views in the mainstream media, either.)

And yet, despite her largely blank record of opinion, Kagan's candidacy for the High Court has provoked almost ecstatic enthusiasm from various current and former colleagues on both sides of the political aisle. She has been praised for her "brilliance," for her "many remarkable qualities," and for being "scrupulously fair-minded" to people of various political views. Yet no one, not even her biggest admirers, can offer any real evidence for what sort of judge she would make, or which side of major legal issues she would fall on.

Why the extreme circumspection about her beliefs? Do we believe she doesn't have any opinions, or do we think she's kept her mouth shut so as not to get in the way of her ambition?

The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her).

I hope your gut is right. I hope that when she sits at the hearings, she realizes her confirmation is all but assured, and she wows us with heretofore unknown opinions that will make us all sigh with relief at her obvious liberal leanings.

Actually had a more impressive resume than most people were led to believe. Maybe not SC justice material, but impressive nonetheless. It's not like she was a bagged at a grocery store and then was nominated. She has a mathematics degree from SMU (a very good school) and also her law degree. She was a plaintiff's attorney on San Fransisco, she was president of the Texas Bar, she was partner in a Dallas law firm, she chaired an ABA committee, and was an at-large member of the Dallas City Council.

She so gave money to Democrats in the 1980s, including to the Senate campaigns of Lloyd Bentsen and the 1988 presidential campaign of Al Gore.

the Math degree didn't get more mention- that should have been a very, very strong defense against the "intellectually dim" charge- I've seen people skate to the normal pre-law degree's (Poli Sci, Philosophy, etc) but I've never seen anyone (at least not anyone who wasn't a genius) skate to a Math degree.

could have used a Justice with a math degree (absent since the departure of Justice Harry Blackmun) .. The Justices became flummoxed in Barber v Thomas, a case that involved how the Federal Bureau of Prisons calculates days for "good time credit." The math challenged justices caused Justice Thomas to do what he rarely does at Court, open his mouth. Not to say anything, but to laugh.

one doesn't have the educational resume she does without an appropriately high IQ. Has she distinguished herself in a career of brilliant legal writing and analysis? No.

She's written very little on legal issues. In the Paul Campos article I linked to and excerpted, he says (my bold):

Kagan's publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component. For example, the thesis of Kagan's 1996 article "Private Speech, Public Purpose" in the University of Chicago Law Review is that the Supreme Court's First Amendment doctrine "constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech." She flatly refuses to assert whether this scheme correctly interprets the First Amendment or whether it is a good method for regulating speech.

She's not only never sat on any court, it wasn't until she took in the position as Solicitor General that she ever made an appearance in a courtroom; from the accounts I've read, she did a terrible job arguing the Obama administration's position in the Citizens United case. I think I'd like the next SC Justice to be able to make good legal arguments, but maybe, in this new move to mediocrity, that's asking too much.

I've thought of some bright sides regarding the news that Elena Kagan is Obama's pick to replace Stevens:

* If ever SCOTUS needs money, Elena Kagan is a great fundrasier!

* Imagine how it'll make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General.

* Given that Republicans will try to oppose Kagan on perceived sexual orientation, it'll make potential gay bashing of Vaughn Walker over the Prop 8 trial much less effective and-assuming Kagan is confirmed-potentially counter-productive for the haters.

* Next time someone has to defend the material support statute before SCOTUS, she probably won't go so far as saying even lawyers who defend those accused of terrorist related crimes materially support terrorism.

* Girls. Three of them. On SCOTUS. Just two more to go and we'll have our fair share.

Kagan is more of a politician than a jurist, she likely represents a safe vote for continuation of the policies she has been advocating as SG - if you like those policies, I guess she's a good pick.

I see her as very much in the Obama model, but as Glenn says: (my bold)

It's anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals -- as is reflected by its actions and policies -- and this is just one more to add to the pile. The fact that she'll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.

Color me disappointed, which, just for reference, is not one that can be found anywhere in the beige-ecru-cream family.

To me she seems like Roberts and Alito in that she is young and can most likely have a long term on the Court. She also has, it seems, like Roberts and very much like Alito, worked very hard to keep any possibly delineating opinions and defining statements to a minimum. That she has attempted to have no "paper trail" on which opponents could fixate. That she can go through confirmation by saying the right platitudes.

That may be a good thing: We may get someone who has been keeping her inner liberal in check in order to maintain viability in this current political climate. Once safely seated on the Court, she will be able to rule according to these liberal principles.

Or...we get someone close to Obama, who turns out to be a good corporatist and seems to be truly relishing the powers of the Unitary Executive. Someone who is highly flexible about civil liberties, depending on who the perons wishing to use those liberties is. Who trims and nibbles around the edges, but does not disturb the entitlements of the uberwealthy.

Who will we see on the bench? What will be her take on expanded executive powers? How will she deal with Big Banksters, Big Health Industry Players, Big Bidness in general? How deal with the legal fiction of corporate personhood?

If she is nominated, I'm sure she will be confirmed. The next Congress will certainly have fewer Democratic senators, so I doubt very much Obama will nominate someone like Diane Wood. If, indeed, he ever had any idea of nominating an actual liberal, much less two or three.

(I have to laugh at my thoughts that he would be interested in reversing the conservative bent of the current court, who might even increase the number of justices in order to do so. Nine is not a magic number and the Court has not always been this small. Gee, I had these hopes that, contrary to some of his past actions, Obama would let his inner liberal out once elected....)

it shows how freaking monochrome and male the court has-- if she's confirmed Obama will have nominated more latino's and as many women as any president before him. I mean look at this breakdown it makes the US Senate look like a Rainbow Coalition event:

I do not know what she will do, but I do know that she has been a bonifide progressive for at least the last 20 years. A close friend of mine's very close long time friend, is best buddies with Sotomayer.

I think its possible the administration knows a good deal about her ideology.

In addition to attending the same law school as the president and previously clerking for one of his important Chicago supporters, Abner Mikva, she also previously worked as a special counsel to now-Vice President Joe Biden when Biden served on the Senate Judiciary Committee.

Now that Congress has chosen to relinquish all responsibility in reigning in executive power, the Supreme Court is our last hope.

The court is going to have to rule on a lot of these right wing laws that have been passed and are under consideration. I would feel a lot better if I was sure that we had someone on the bench that really believed in our civil liberties.

it seems that everyone can do the Obama and project onto Kagan what they hope she will be. While it's true that you never know what you are getting on the Supreme court, I see nothing exciting in her history. I think it's a safe pick for Obama because he's afraid of having to fight with the GOP.

I consider it supremely unlikely that a Jewish woman from New York who clerked for Thurgood Marshall and has worked in two Democratic Administrations is some kind of closet conservative. Though I admit that it's a remote possibility.

I think we need a new shorthand because there is a list of total dolts a mile long with a degree from Harvard or Yale...it is really no way to measure qualification for the high court, and it insures a court with a very limited world view when only Ivy League grads need apply....some great minds don't hit their stride till 30.

Was sunk by her own party, not the Democrats. Democratic opinion never entered into the Bush administration. I seriously doubt he was worried about their reaction to Meirs. Hardliners didn't believe she was hard core enough for them.

her own party. And my view at the time, since I know her, was she was qualified and she would have been a good justice. I still believe that.

As Orin Kerr pointed out when discussing a post I wrote about her at the time (yes, I was wrong to think she wouldn't withdraw her nomination, but that's beside the point):

In one of the very rare statements Miers has made that is relevant to the work of the Supreme Court, she expressed the view that the death penalty in Texas needs to be overhauled to provide better representation for indigent defendants. (Describing reforms of the death penalty in Texas in 1993, Miers stated that "we're using a Band-Aid approach when the system needs an overhaul.")

In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure....Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

She also refused to join the conservative Federalist Society.

I think both Miers and Kagan are qualified. I just wish I could find some indication Kagan shares some of the views Miers' expressed.

The president went to Harvard, and barely defeated a primary opponent who went to Yale. His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively. The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

I know that Harvard and Yale attract a disproportionate percentage of America's talented youth, but still, isn't this a bit much? Are there no similarly talented individuals who attended other Ivy League schools, other private universities or (gasp!) even state law schools?

Yes. There are tons of talented people who never went to an Ivy. In fact, I'll go so far as to say there are many more talented people who DIDN'T go to an Ivy, and many who went to an Ivy aren't really that smart nor talented. And many of the ones I've met seem to be socially awkward and lack. Cl common sense, but that's just me.